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Complying with the Canada Anti-Spam Act (CASL) & US CAN-SPAM ACT of 2003
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Complying with the Canada Anti-Spam Act (CASL) & US CAN-SPAM ACT of 2003
By Rebecca Brandt, Account Executive, Executive Director. Inc. 

As of July 1, 2017, the Canadian Anti-Spam Act (CASL) became enforceable, meaning that an entity can be fined $1-10 million per violation for sending an electronic message without the recipient’s consent. The provision allowing an individual to sue against a violating entity has been suspended, however the government is still able to fine entities that do not comply. An AMC is responsible for ensuring that all clients are adhering to this law, or risk fines by the Canadian government.

Under CASL, a Commercial Electronic Message (CEM) is a message that encourages participation in a commercial activity, including, but not limited to: offering, advertising or promoting a product, a service or a person. This includes emails, SMS text messages or instant messages that promote courses, annual meetings, books, webinars, etc.

Here’s what you need to know before sending out your commercial electronic message:

Implied consent 
Existing business relationship
The recipient has made, or enquired about, a purchase or lease of goods, services, land or interest in land, a written contract or the acceptance of a business, investment or gaming opportunity from you.

Existing non-business relationship
You are a registered charity, a political party or a candidate, and the recipient has provided you a gift, a donation or volunteer work.
You are a club, association or voluntary organization and the recipient is one of your members.

Recipient’s e-mail address was conspicuously published or sent to you
The address was disclosed without any restrictions and your message relates to the recipient’s functions or activities in a business or official capacity.

Express consent
Valid consent given in writing or orally
The recipient gave you a positive or explicit indication of consent to receive commercial electronic messages.


Your request for consent set out clearly and simply what is the prescribed information.

What information needs to be included in a CEM?

Identification
Identify your business name, if different from your name (if not, identify your name) and the name of anyone else on whose behalf or business you are sending the message.

Contact information
You must include your mailing address. You must also include one of: a phone number to access an agent or a voice messaging system, an email address, or a web address for you or the person on whose behalf you are sending the message. Ensure these contact methods are accurate and valid for a minimum of 60 days after sending the message.

Be clear
If you are using a link to provide the required information, the link must be clearly and prominently displayed in the message.

Here are some additional things to keep in mind:

Keep records
Keep records of how you obtained implied or express consent, since in both cases you have the onus to prove consent.

Time limit
Express consent is not time-limited
Unless the recipient withdraws his or her consent.

Implied consent is generally time-limited
It is typically a period of two years after the event that starts the relationship (e.g. purchase of a good). For subscriptions or memberships, the period starts on the day the relationship ends (membership expiration date).

For more Information:

AMCI recently hosted a webinar, “Data Privacy & Protection – A Guide for AMCs”, which provides additional information about implementing procedures and policies to protect your clients’ data and adhering to the CASL laws. While there is no certainty, the anticipation is that CASL-type laws and regulation will next move to the EU. 

The content in this article is intended to serve as guidance only and each organization needs to review how the CASL affects its CEM on an individual basis.

Additional Resources:

http://fightspam.gc.ca/eic/site/030.nsf/eng/home
http://www.yeslifecyclemarketing.com/blog/detailed-look-email-consent-and-canadas-new-anti-spam-legislation-casl

 

AMCI Partners

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